MaLone v. Belcher

• Decision Date: 13 December 1913
• Citation: 103 N.E. 637,216 Mass. 209
• Parties: MALONE v. BELCHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 209

103 N.E. 637

MALONE v. BELCHER.

Supreme Judicial Court of Massachusetts, Hampden.

December 13, 1913

COUNSEL

A. S. Kneil, of Westfield, for plaintiff.

John D Kaps and Doherty & Brownson, all of Springfield, for defendant.

OPINION

MORTON J.

This is an action of tort to recover of the defendant damages for a malicious abuse of process in causing property which the plaintiff had bargained to sell to one Petersen to be maliciously attached for the purpose of preventing said sale and compelling the plaintiff to convey the same to the defendant or to such person or persons as he might designate. There was a verdict for the plaintiff with the amount of which he is dissatisfied. The case is here on exceptions by both parties to the refusal of the presiding judge to give certain rulings asked for--those requested by the plaintiff going to the measure of damages, and those requested by the defendant to the maintenance of the action. There is also an exception by the defendant to the charge.

There was evidence tending to show that while the suit was brought by the defendant and the attachment made for the ostensible purpose of collecting a commission which he claimed to be due him from the plaintiff, the real object was by means of the suit and attachment to prevent the conveyance of the property to Petersen and to secure it for himself. The plaintiff testified amongst other things that the defendant said: "I am going to attach it' [meaning the property which the plaintiff had agreed to sell to Petersen]. I said, 'What right do you claim, Mr. Belcher, to attach it?' He said, 'I want to hold up the sale; that is the only way I can hold it up." The plaintiff also testified that in answer to his question, 'Who is your customer,' the defendant replied, 'It was myself, Mr Malone.' This and other evidence introduced by the plaintiff warranted, if believed, a finding that the real object of the suit and attachment was not that for which the suit purported to have been brought and the attachment made but was for the purpose of preventing the transfer of the property to Petersen and getting it, if the defendant could, for himself. This would constitute a malicious abuse of process for which the defendant would be liable. The gravamen of the cause of action was the malicious attachment by means of the suit for the purpose of preventing the transfer to Petersen. It was not necessary in order to maintain the action to show a termination of the suit in which the attachment was made, as it would have been in case of malicious prosecution. The attachment for the purpose of preventing the sale to Petersen was a perversion of the object which the writ was intended by law to effect, and it was therefore immaterial whether the suit in which the attachment was made had been terminated or not. But as to malice and want of probable cause the case stood differently. The defendant had the right, even though actuated by malicious motives, to attach the property to secure a claim which he had probable cause for believing was due to him from the defendant. In these respects the case was analogous to a case for malicious prosecution, and it was necessary, as the court instructed the jury, for the plaintiff to show malice and want of probable cause. Savage v. Brewer, 16 Pick. 453, 28 Am. Dec. 255; Wood v. Graves, 144 Mass. 365, 11 N.E. 567, 59 Am. Rep. 95; Zinn v. Rice, 154 Mass. 1, 27 N.E. 772, 12 L. R. A. 288; White v. Apsley Rubber Co., 181 Mass. 339, 63 N.E. 885; Grainger v. Hill, 4 Bing. N. C. 212; Hearn v. Shaw, 72 Me. 187; Mayer v. Walter, 64 Pa. 283; Drake on Attachments (2d Ed.) § 726; 19 Am. & Eng. Encyc. of Law (2d Ed.) 632; Bigelow on Torts (8th Ed.) 230; 3 Ann. Cas. 722, note. Malice was defined by the court, as the...