Jordan v. James & Holmstrom Piano Co.

• Decision Date: 13 January 1922
• Docket Number: 90.
• Parties: JORDAN v. JAMES & HOLMSTROM PIANO CO. et al.
• Court: Maryland Court of Appeals

117 A. 366

140 Md. 207

JORDAN v. JAMES & HOLMSTROM PIANO CO. et al.

No. 90.

Court of Appeals of Maryland

January 13, 1922

Appeal from Court of Common Pleas of Baltimore City; Carroll T Bond, Judge.

Action by Joseph P. Jordan against the James & Holmstrom Piano Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

J Cookman Boyd, of Baltimore (Thomas E. Mason, of Baltimore, on the brief), for appellant.

Allan H. Fisher and Samuel J. Fisher, both of Baltimore (Fisher & Fisher, of Baltimore, and Henry H. Harkavy, of New York City, on the brief), for appellees.

URNER J.

On this appeal from a judgment for the defendants in an action for malicious prosecution the chief inquiry is whether the evidence is legally sufficient to prove that the prosecution was without probable cause. The plaintiff was indicted for the embezzlement of $174, being part of the proceeds of the sale of pianos consigned to him as agent of the James & Holmstrom Piano Company, one of the defendants, and for the larceny of a piano so consigned. There was evidence tending to prove that the defendant just named and its auditor, Louis Goldman, who is a codefendant, were instrumental in procuring the indictments. It was upon the testimony of Goldman, acting on behalf of the piano company, that the indictments were returned. After being acquitted on both charges, the plaintiff brought this suit.

The principles of law governing the case will first be stated, and they will then be applied to the undisputed facts shown by the evidence offered on behalf of the plaintiff, at the close of which a verdict was directed for both defendants on the ground that the the evidence was legally insufficient to prove a want of probable cause for the prosecution.

It is a well-established rule that, in order to recover in a suit of this kind, it is necessary for the plaintiff to prove, not only that the prosecution of which he complains was instigated by the defendant, and that it terminated in an acquittal, dismissal, or abandonment, but also that there was no probable cause for the defendant's action. These are all essential elements of the plaintiff's case, and, unless he proves each of them, he is not entitled to have the case submitted to the jury. The accepted definition of probable cause is:

"Such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused to be guilty."

It has been held to be wholly immaterial whether or not the accused was actually guilty, if the facts known to the defendant were such as to lead "a cautious man" to that conclusion. The want of probable cause is not to be inferred merely because the defendant may appear to have been actuated by malice in promoting the prosecution, although from the want of probable cause an inference of malice may be justified. Whether the evidence is legally sufficient to prove the want of probable cause is a question which the court is authorized to decide. These propositions have all been frequently affirmed. Chapman v. Nash, 121 Md. 608, 89 A. 117; Moneyweight Co. v. McCormick, 109 Md. 170, 72 A. 537; Hooper v. Vernon, 74 Md. 136, 21 A. 556; Thelin v. Dorsey, 59 Md. 539; Boyd v. Cross, 35 Md. 197; Cooper v. Utterback, 37 Md. 318; Stansbury v. Fogle, 37 Md. 381; Medcalfe v. Brooklyn Life Ins. Co. of New York, 45 Md. 205; Hyde v. Greuch, 62 Md. 577; Torsch v. Dell, 88 Md. 459, 41 A. 903; Sappington v. Fairfax, 135 Md. 186, 108 A. 575.

The evidence offered by the plaintiff has inclined us to the view that he probably had no criminal intent in the transactions to which the indictments refer, but we agree with the trial court that his conduct, as it appeared to the defendants, was such as to warrant their belief to the contrary.

The relations between the plaintiff, who is a retail dealer in musical instruments, and the defendant corporation, which manufactures pianos, began in March, 1918. At that time they entered into an agreement for the consignment of pianos by the company to the plaintiff upon terms and under conditions uniformly stated in the receipt signed for each of the subsequent deliveries. It was therein stipulated that the consignee might sell the pianos, "but only on account of consignor," and whether sold for cash or on the installment plan, at no less than the prices specified, the proceeds should be collected by the consignee as agent of the consignor and remitted to it immediately, and the consignee should thereupon become entitled to be paid by the consignor, as compensation for his services in making such sales, the difference between the "consigned value" of the pianos and the amount actually received. It was provided that the title to the pianos should remain in the consignor, and they should be subject to its order at all times until it should be paid the full amount of the consigned value.

Upon the basis of the agreement of which we have outlined the essential features a number of pianos were successively shipped to the plaintiff during a period of about a year and a half, and his accounting for the proceeds of his sales was conducted in apparent conformity with his contractual duty. But in October, 1919, the defendant Goldman, auditor of the Piano Company, visited the plaintiff's place of business in Baltimore, and discovererd that he had failed to remit $174, which he had received as monthly payments on pianos sold on the installment plan, and that he had retained $655 paid him for pianos sold on cash terms, but for which he had not yet obtained full settlement. Most of the installment sums as to which the plaintiff was thus found to be delinquent had been received by him during periods covered by reports which purported to include all collections made by him between the dates they designated. A stock report made by the plaintiff under date of October 7, 1919, represented as being in stock several pianos which had in fact been sold, and for the partial payments on which he had not accounted. It was about October 23d that Goldman made his visit to the plaintiff's store and discovered the facts we have noted. There was a promise by the plaintiff to pay within a week the amount of the deficiency on the installment sales, but he claimed that he was not accountable to the company for the sums paid him on cash sales until he had received the whole of the purchase price. This claim was directly in conflict with the plain terms of the contract under which the pianos had been consigned. No payment having been made by the plaintiff of any part of the collections as to which he was found to be in default, the defendants, towards the end of November, 1919, initiated the prosecution which has occasioned the pending suit.

There can be no doubt that in selling the consigned pianos, and in collecting the proceeds of the sales, the plaintiff acted solely and strictly in the capacity of the consignor's agent. This is made perfectly clear by the terms of the agreement under which the instruments were received and sold. It is certain also that the plaintiff collected considerable sums of money for the piano company which he failed to report and pay, and which he has retained in spite of its repeated demands. There is no claim that the amount as to which he is thus in default is offset by compensation due him from the...