Grant v. Reinhart

• Decision Date: 27 November 1888
• Citation: 33 Mo.App. 74
• Parties: CHARLES G. GRANT et al., Respondents, v. CHARLES REINHART et al., Appellants.
• Court: Missouri Court of Appeals

33 Mo.App. 74

CHARLES G. GRANT et al., Respondents, v. CHARLES REINHART et al., Appellants.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. LEROY B VALLIANT, Judge.

REVERSED AND REMANDED.

Walker & Walker, for the appellants.

The doctrine laid down in Beeson v. Southard, 10 N.Y. (6 Seld.) 236, has been unhesitatingly followed. It was there held that " in an action for malicious prosecution, the plaintiff must allege and prove both malice and want of probable cause for the former suit. If there was probable cause, the action cannot be maintained, even though the prosecution complained of was malicious. Want of probable cause and malice must concur and the former cannot be inferred from any degree of malice which may be shown." Stewart v. Sanborn, 98 U.S. 195; Buchanan v Smith, 16 Wallace 277; Sharpe v. Johnston, 76 Mo. 660; Burris v. North, 64 Mo. 426; Vansickle v. Brown, 68 Mo. 627; Spurling v. Conway, 75 Mo. 512; 1 Sutherland on Damages, 748; Murphy v Larson, 77 Ill. 175; Stacey v. Publishing Co., 68 Me. 287; Wiggins v. Coffin, 3 Story 94.

Smith & Harrison and E. S. Robert, for the respondents.

There was substantial evidence tending to prove malice and want of probable cause, and this court will not weigh the evidence. Probable cause is a mixed question of law and fact, and, the facts in this case being disputed, the court below properly submitted the question to the jury. Sharpe v. Johnston, 59 Mo. 557, 576; Hill v. Palm, 38 Mo. 13, and authorities there cited. In suits for malicious attachment it is not necessary for plaintiff to show express malice. Nor need malice be proved by direct and positive testimony. It may be inferred by the jury from the facts which go to establish want of probable cause. Callahan v. Cafferatta, 39 Mo. 136; Holliday v. Stirling, 62 Mo. 321; Sharpe v. Johnston, 59 Mo. 557, 576; Sharpe v. Johnston, 76 Mo. 660, loc. cit. 669. There was no evidence that defendants had advised with counsel as to the propriety of the attachment. The court below properly excluded evidence of the consultations had by defendants with their collecting agents who were not attorneys.

OPINION

ROMBAUER P. J.

The plaintiffs were retailers of clocks and silverware in Kansas City and were formerly customers of the defendants who are wholesale dealers in the same articles in St. La. Prior to May 5, 1885, the plaintiffs discontinued their purchases from the defendants, remaining indebted to them in the sum of $261.05 on open account. The defendants placed the account in the hands of a collecting agent in St. Louis, who forwarded it to an attorney in Kansas City. The attorney called upon the plaintiffs and pressed them to pay or secure the claim. Immediately thereafter the plaintiffs addressed the following letter to the defendants:

" GRANT & ELBERG,

1307 Main St., KANSAS CITY, MO.,

May 5, 1885.

REINHARD, DINKELMANN & CO.,

ST. LOUIS, MO.,

Dear Sirs: --A lawyer called on us to-day in regard to your bill. Now we wish to let you understand just what we intend to do in the matter. We offered you a note due in six months, which you refused. We have a few hundred dollars invested in real estate here which we are offering for sale, and as soon as we sell, your account will be paid, as it is on account of your bill that we are going to sell, although we will lose by selling. Now if another lawyer sets his foot into our place, or if we are dunned in this manner for your bill, we shall consider the account squared. This is the last we shall write to you. Please understand that we can do no better than our best, and if you choose to try and bulldoze us into paying before we can, you will most certainly lose by it.

Yours respectfully,

GRANT & ELBERG."

After receipt of this letter the defendants sued out an attachment on the ground, among others, that the plaintiffs were about fraudulently to convey or assign, and about fraudulently to conceal, remove or dispose of their property or effects so as to hinder or delay their creditors. This attachment was levied on the plaintiffs' store-goods, worth about six hundred dollars, and was subsequently dissolved by the trial court in Kansas City, and its judgment affirmed by the court of appeals, whereupon the sheriff returned to the plaintiffs three hundred and forty dollars being the entire proceeds of their goods sold under the attachment.

The present action is one for malicious attachment, growing out of these proceedings. Upon the trial of the cause the jury found a verdict for the plaintiffs in the sum of $3,858.33. The plaintiffs subsequently entered a compulsory remittitur of $1,939.16, one-half of their recovery, and the court entered judgment for the residue. The defendants appeal.

Error is assigned, in that the court excluded legal evidence offered by the defendants. We may dismiss this complaint with the observation that it is not well founded. The defendants offered to show that they laid the facts of the case fully before their collecting agents, before bringing the attachment suit, but as it was not shown that such agents were attorneys or persons learned in the law, the evidence was properly excluded. Beal v. Robeson, 8 Ired. 276; Olmstead v. Partridge, 16 Gray 381.

The other errors assigned are that the verdict is against the evidence and that the damages are excessive. It is well settled in this class of cases that to justify a recovery, proof of the want of probable cause is absolutely essential. Malice and a want of probable cause are both essential ingredients of the action, but as malice may be inferred from a want of probable cause the latter alone must be established, whereupon the former may be inferred. If the circumstances brought to the claimant's knowledge are such as to induce a reasonable and careful man to believe that the debtor had committed, or was about to commit, some act which the law deems sufficient to subject his property to attachment, and acting upon such belief institutes the proceeding, he is not liable to an action for malicious attachment even though the attachment is subsequently dissolved, and even though he may have been misinformed as to the facts.

From this statement the following results necessarily flow. Whether an attachment can be sustained depends upon the existence of the facts warranting it, but whether an action for malicious attachment can be sustained when the facts do not exist depends upon the honest belief of the plaintiff in the attachment in their existence, such belief being based on circumstances sufficiently strong to warrant it on the part of a reasonable and careful man.

When the facts are undisputed, probable cause is a question of law, and not of fact. The dispute as to facts in order to justify a submission of the case to the jury must be one materially affecting the question of the defendants' good faith or belief, and not one as to collateral facts of secondary importance. We have searched the record in vain to find in it any evidence of express malice, or any evidence of a want of probable cause, or of any substantial dispute touching any material fact affecting the good faith of the defendants' belief that the plaintiffs were about to dispose of their property in some manner to avoid the payment of a debt admittedly due. That the defendants sought to collect or secure their claim first by correspondence is conceded. That failing in this they placed it in the hands of a lawyer, as business-men generally do, is conceded. That the lawyer called upon the plaintiffs for this purpose and was ordered out of the store is conceded. That the only security plaintiffs offered for the claim was a third mortgage on property (which it would seem they controlled, although the title was in the name of the wife and mother-in-law of one of the plaintiffs) is conceded. That they wrote the letter of May 5, hereinabove recited, to the defendants, is conceded, and we do not hesitate to say that as a matter of law that letter can bear no other rational interpretation than that it was the intention of plaintiffs to repudiate an honest debt, and avoid its payment by some means if the defendants persisted in attempts to collect their claim in a manner warranted by the laws of the land and usually adopted by business-men.

The defendant who made the affidavit in the attachment testified " I was afraid at the time, believing they intended to convey their property, as having taken exceptions to my giving my account to a collector, after it was past due some four or five months. They refused to deal with my agent and had failed to give us security, they said they were going to consider the account square, and I was afraid by bringing a suit and trying to get a judgment in the usual way, that in the meantime they would have everything disposed of or concealed or taken away, so that I could not issue an execution against them, and collect my account in that way," and this testimony is in no way controverted either by surrounding circumstances or any evidence to the contrary. It must be borne in mind that this letter is the last communication that passed between the parties prior to the attachment, that the plaintiffs resided at a great distance from defendants, and that the only means the defendants had of forming a belief as to plaintiffs' intentions was from communications received from the plaintiffs, or from defendants' agent, whom the...