Jessup v. Whitehead

• Decision Date: 11 April 1892
• Citation: 2 Colo.App. 76,29 P. 916
• Parties: JESSUP v. WHITEHEAD.
• Court: Colorado Court of Appeals

29 P. 916

2 Colo.App. 76

JESSUP v. WHITEHEAD.

Court of Appeals of Colorado

April 11, 1892

Appeal from superior court of Denver; M.A. ROGERS, Judge.

Action by Alvin L. Jessup against Andrew Whitehead for malicious prosecution. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by BISSELL, J.:

Some time in 1888, Andrew Whitehead filed a complaint before Sales, a justice of the peace in Arapahoe county, charging Alvin L. Jessup with the crime of obtaining money by false pretenses. Jessup was arrested on a warrant issued under the complaint, examined, and discharged. This action was brought by him against Whitehead to recover the damages which he claimed to have sustained by reason of this criminal prosecution. No statement of facts is necessary to an understanding of this controversy other than a narration of what Whitehead claimed were the fraudulent representations made to him by Jessup. Early in 1888, three parties--Appleman, Griswold, and Jessup--were jointly and equally interested in an insurance agency which had been incorporated. Jessup had purchased his interest from Griswold, and had given therefor his promissory note for $3,000, which was subject to certain credits derived from the profits of the business, and a reduction because of certain conditions under which the sale had been made. Jessup desired to dispose of his interest, and Whitehead and one Herzinger entered into negotiations to buy it. It would appear that they contemplated purchasing the entire agency, but this is unimportant. At the time of these negotiations Jessup's note to Griswold for $1,500 secured by the pledge of his stock as collateral, was outstanding. Griswold was indebted to one Holland for $300 and had pledged this note of Jessup's, with its collateral, with Holland, to secure the payment of his note. In some way, which it is not necessary to consider, but subsequent to the maturity both of Griswold's and of Jessup's paper, Appleman purchased from Holland this Griswold note, and received the collaterals which had been delivered to Holland as security therefor. During the negotiations which Jessup had with Whitehead and Herzinger he stated that the only claim against his stock was $372, which he owed to Griswold under the terms of their deal and the condition of the corporation's books. Whitehead purchased the Jessup interest in the stock, and gave him a check for $375, with which to relieve it from the pledge. In the mean time, as stated, the notes and stock had passed into Appleman's hands, who took the $373, which Jessup claimed he owed, and which he tendered to him, and then declined to surrender the stock, insisting that he had bought it from Holland, and owned it. He gave Jessup a receipt for the money, which was taken to Whitehead, who thereupon insisted that Jessup had swindled him, because the stock had been pledged on the $1,500 note, and was, as he contended, charged with a liability to that extent. Whitehead insisted upon the return of his money or the delivery of the stock, and, failing to get either, went to the assistant district attorney to institute criminal proceedings against Jessup.

Markham & Dillon and Ross & Deweese, for appellant.

F.A Williams, for appellee.

BISSELL J., (after stating the facts.)

No discussion of the law controlling actions for malicious prosecution can prove profitable. It has been settled by a long series of adjudications, which will furnish precedents for all possible phases of such controversies. It is enough to announce the lines within which this judgment must fall. The concurrence of malice and probable cause is essential to the right of action. Both are the proper subjects of proof, and neither are matters of presumption, save that, where there is suitable and sufficient evidence of a want of probable cause, malice is a legitimate matter of inference with the jury. Brown v Willoughby, 5 Colo. 1; Stewart v. Sonneborn, 98 U.S. 187. Manifestly these matters are within the province of the jury or of the trial court. Without some unusual manifestation of passion or prejudice, or the presence of findings in the record which warrant the inference that the conclusions were not controlled by a due regard for the law, appellate courts will be very reluctant to disturb the judgment. It is comparatively easy to state the universal definition of "probable cause." It is expressed in Brown v. Willoughby, and was redefined in substantially the same language in Clement v. Major, (Colo.App.) 29 P. 19. Like every other controversy of this description, this matter rested upon very conflicting testimony. As to whether what had been discovered by Whitehead would lead a man of ordinary caution and prudence to believe Jessup guilty of the crime with which he charged him, or to entertain an honest and strong suspicion of that guilt, is a matter on which there might possibly be honest and marked differences of opinion. It is undoubtedly true that there were many items of information brought...