Farrell v. Phillips

Decision Date12 November 1909
Citation140 Wis. 611,123 N.W. 117
CourtWisconsin Supreme Court


Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Martin Farrell against W. H. Phillips. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Phillips commenced a criminal prosecution against Farrell for the larceny of a promissory note, and, the prosecution being dismissed by the examining magistrate, Farrell brought this action for malicious prosecution. Phillips' defenses were that the plaintiff actually committed the larceny, and that he (Phillips) acted on the advice of counsel.

Most of the facts were undisputed. The defendant, Phillips, in April, 1908, owned a building in the city of Oconto which he desired to rent for saloon purposes. Prior to May 16th he had deposited $200 with the city clerk and applied for a license for the balance of the license year, but had received no license because the city council had not met. On the 16th of April he met Farrell, and after some talk an arrangement was made by which Farrell was to lease the building and operate a saloon in it at an agreed rental, and was to give his note indorsed by a responsible indorser for half the city and government license amounting to $112; Phillips paying the other half. At this point arises the only serious dispute as to the facts. Farrell claimed that Phillips said he already had the city license and would assign it to him, while Phillips claims that he only told Farrell that he had applied for the license and deposited the money and would have it issued to him (Farrell). On the same day the oral arrangement was so far carried out that the lease was drawn in duplicate, and a copy delivered to each party, a negotiable note for $112, with the indorsement of one Dr. Watkins, was signed by Farrell and delivered to Phillips, and the key of the building delivered to Farrell. Upon the following morning Farrell called at Phillips' house and asked Phillips to let him see the note to see if it was all right, and Phillips handed him the note, and Farrell secretly and without Phillips' knowledge substituted for the indorsed note his own note, without indorsement, and handed it to Phillips, who did not discover the substitution until afterwards. Farrell claimed that he had ascertained that Phillips had no license, and that he was afraid that Phillips was not going to deal fairly with him, and so he determined to get his note back and call the deal off. Nothing further was done towards carrying out the contract. Farrell left Oconto the next day, and Phillips immediately made sworn complaint against him for larceny of the note.

The jury returned a special verdict finding: (1) That Phillips maliciously procured Farrell's arrest; (2) that the agreement between the parties was that Phillips would assign to Farrell a license which he then claimed to have, and that this agreement was the consideration for the note in question; (3) that Phillips did not make a full, fair, and honest statement of the material facts to an attorney before the prosecution commenced; (4) that Phillips did not sincerely and in good faith believe when he swore out the warrant that the plaintiff was guilty of larceny; and (5) that plaintiff's damages amounted to $2,335.77, of which sum $2,000 were punitory damages. The court gave defendant the option to consent to judgment for $935.77 within 20 days, and, in the event of failure to exercise the option, gave plaintiff the option to take judgment for $635.77, and ordered that if neither option should be exercised the verdict be set aside and a new trial granted. The defendant did not exercise its option, but the plaintiff chose to take judgment for $635.77, and from that judgment the defendant appeals.

F. X. Morrow and Sheridan & Evans, for appellant.

Allan V. Classon and D. D. Conway, for respondent.

WINSLOW, C. J. (after stating the facts as above).

In order to sustain an action for malicious prosecution it must appear: (1) That the defendant commenced a prosecution; (2) that it has terminated in the plaintiff's discharge; (3) that it was commenced maliciously; and (4) without probable cause. In this case the first two facts were admitted, and the contest was as to the third and fourth propositions. By their verdict the jury found malice, but did not find lack of probable cause, so the verdict on its face seems to omit an essential fact.

It appears that the trial judge considered that when the jury, by its second finding, found that the agreement was that Phillips was to assign to Farrell a license which he then had, in consideration for the indorsed note, it was in effect found that the note was without consideration and of no value, and hence that no larceny was committed in taking it, and that if there was no larceny then there could be no...

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10 cases
  • Mevorah v. Goodman
    • United States
    • North Dakota Supreme Court
    • 5 Marzo 1953
    ...was that contempt of court is not a crime, although the same act may be a crime and may be contempt of court. In Farrell v. Phillips, 140 Wis. 611, 123 N.W. 117, 119, the court held that it was error to admit for purposes of impeachment the record of the prior conviction and fine of the wit......
  • Pennell v. State
    • United States
    • Wisconsin Supreme Court
    • 12 Noviembre 1909
  • State v. Carpenter, 92-2435
    • United States
    • Wisconsin Court of Appeals
    • 28 Octubre 1993
    ...at 476, 129 N.W.2d at 147, and earlier cases. See State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N.W. 830 (1922); Farrell v. Phillips, 140 Wis. 611, 123 N.W. 117 (1909). The state's reliance on State ex rel. N.A. is similarly misplaced. In N.A., we referred to the punishment associated wit......
  • Case v. Beyer
    • United States
    • Wisconsin Supreme Court
    • 5 Abril 1910
    ...seems clear that it did. If the court found as claimed by defendants, the finding is subject to review here without exception. Farrell v. Phillips, 123 N. W. 117. Under the foregoing late decision of this court, if such finding is against the clear preponderance of the evidence, it may be s......
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