Meysenberg v. Engelke

• Decision Date: 09 June 1885
• Citation: 18 Mo.App. 346
• Parties: G. MEYSENBERG, Respondent, v. B. H. ENGELKE, Appellant.
• Court: Missouri Court of Appeals

18 Mo.App. 346

G. MEYSENBERG, Respondent,

v.B. H. ENGELKE, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 9, 1885.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

DAVIS & DAVIS, for the appellant: The testimony of Samuel Hermann, attorney for the state in the criminal action against Meysenburg, was incompetent. Revised Statutes of Missouri, § 4017, p. 90; Cross v. Riggins, 50 Mo. 335; Hull v. Lyon, 27 Mo. 570; Johnson v. Sullivan, 23 Mo. 434. The books read in evidence, as the books of the Excelsior Distilling Company, were incompetent. They were not identified as such books. The attorney for the plaintiff was not upon oath when he read from the same. 1 Greenleaf on Evidence (13th Edition) § 571, p. 620; Collins v. Bayatum, 1 Ad. & E. C. U. S. 117; Phillips on Evidence (10th English Edition) vol 2, p. 480; 1 Starkie on Evidence (9th Am. Ed.) p. 458, *503; Lessees of Rhoades et al. v. Selin et al., 4 Washington C. C. R. 715-719. There was evidence of probable cause for the prosecution, which is a question for the court. Stone v. Crocker, 24 Pickering 81-84; Good v. French, 155 Mass. 201; People v. Kendall, 25 Wendell 399; Clifford v. State, 56 Indiana 245; State v. Timmons, 58 Indiana 98; Commonwealth v. Horby, 7 Metcalf 462; Sandy v. State, 60 Alabama 58; State v. Vorback, 66 Mo. 169. The jury were instructed that they must find want of probable cause to believe the plaintiff guilty of a crime, when the court refused to instruct the jury as to what constituted the crime. State v. Newell, 1 Mo. *248 p. 146; State v. Vorback, 66 Mo. 169.

ALBERT ARNSTEIN and W. C. JONES, for the

respondent: The entries in an account book of a defendant are always admissible in evidence against him, as admissions against interest, and the presumption of law is that they were properly kept. St. Louis Gas Co. v. City of St. Louis, 11 Mo. App. 55-75; St. Louis Gas Light Co. v. City of St. Louis, 12 Mo. App. 573; 2 Wharton Ev. Par. 1131; Foster v. White Cloud City Co., 32 Mo. 505. Evidence of other statements made to third persons, with no intent that they should reach defendant, were properly excluded. Christman v. Carney, 33 Ark. 316; Patterson v. Carlock, 39 Mich. 447; Degenhart v. Schmidt, 7 Mo. App. 117; Carson v. Edgeworth, 43 Mich. 241. The instructions given to the jury upon the question as to where advice of counsel will protect defendant from liability for malicious prosecution, are fully in accord with the law as declared in Sharpe v. Johnson, 76 Mo. 660; also, 59 Mo. 557; Vansickle v. Brown, 68 Mo. 635; Sparling v. Conway, 75 Mo. 510; Hill v. Palm, 38 Mo. 13: Sappington v. Watson, 50 Mo. 83.

THOMPSON, J., delivered the opinion of the court.

This action was brought for a malicious prosecution against Barnett H. Engelke, Louis F. Engel, John L. Bernecker, and the Excelsior Distilling Company, a corporation. At the trial the plaintiff dismissed as to Engel and Bernecker. The jury returned a verdict for Engelke, and a verdict in favor of the plaintiff against the Excelsior Distilling Company for $300.00. Judgment was entered on the verdict, and the Excelsior Distilling Company appealed.

Counsel for the appellant seem to have exhausted all the possibilities of the record in multiplying objections. We shall address ourselves only to those which seem to be of a substantial character.

1. There is no error in permitting the witness, Hermann, to testify as to communications which had passed between him and the defendant, Engelke, touching the criminal prosecution against the plaintiff. Although Hermann nominally represented the state in that prosecution, he never was the attorney of any of the defendants touching it, and any communications which may have passed between him and them with reference to it were not, therefore, within the rule of privilege which protects communications between attorney and client.

2. The court committed no error in submitting the case to the jury. There was evidence tending to show that the warrant was sworn out by the defendant, Engelke; that this defendant was at the time the treasurer of the Excelsior Distilling Company, and had charge of its legal business; that before instituting the prosecution he had consulted the president of the company, Mr. Bernecker, who had told him to do what he thought proper; that the prosecution was upon a charge of obtaining $400.00 in money, and three barrels of liquor from the Excelsior Distilling Company, by false pretenses; and that one-half of the fee, charged by the stenographer for taking notes of the testimony at the examination in the court of criminal correction, was paid by the Excelsior Distilling Company, and entered upon the books of such company. It also appeared that the plaintiff had failed a month after obtaining the money and the goods in question, and had assigned all his property, including his book accounts, to his brother, T. A. Meysenberg, in payment of a large indebtedness due by him to the latter; that the criminal prosecution was instituted seventeen days after this assignment, and that, while the prosecution was pending in the court of criminal correction, a proposition was made by those in charge of it to the attorney of the plaintiff (defendant in that prosecution), to settle the matter if he would pay fifty cents on the dollar of the debts which he owed to the Excelsior Distilling Company, and to clients of Mr. Hermann, the attorney who was conducting the prosecution. We take it that the testimony was such that the jury were authorized to infer from it that the criminal prosecution against the plaintiff had been concocted by Hermann, representing certain creditors of the plaintiff, and Engelke representing the Excelsior Distilling Company; that the object of the prosecution was to coerce the plaintiff, or his friends, into paying what he owed the clients of Hermann and the Excelsior Distilling Company, in whole, or in part, and that the expenses of the prosecution were divided between the clients of Hermann and the Excelsior Distilling Company. If this was the object of the prosecution, it was malicious in a legal sense, as the court instructed the jury.

3. But though this may have been the motive of the prosecution, the defendants were not liable unless there was no probable cause for instituting it; because, if there was probable cause for instituting it, they had a legal right to institute it, and where a person has a legal right to do a thing, the law does not concern itself with the motive with which he does it. Whether there was probable cause for instituting the prosecution was, therefore, the most important inquiry in the case. Upon this question, the plaintiff's testimony tended to show that he had for several years done business as a dealer in liquor under the name of C. Meysenberg & Company; that he had been a constant customer of the Excelsior Distilling Company; that he had bought goods of them to the extent of from $600.00 to $1,200.00 per month, giving his note for thirty days at the end of each month for the aggregate value of the goods purchased during that month; that, on or about the 1st of May, 1883, having a note of over $700.00 in bank, given by him to the Excelsior Distilling Company for goods of the previous month, which note would mature on the 5th of May, he applied to the Excelsior Distilling Company for a loan of $400.00 to use in taking up this note; that this loan was made to him in cash by them and was so used by him; that for this loan he gave them his promissory note for $400.00, maturing at thirty days, which note was never paid; that on the 4th of May, he sent his porter to the Excelsior Distilling Company for three barrels of whiskey, which were furnished to him in the ordinary course of business, as they had often done before; that at the time this money was advanced and these goods sold to him, no special representations were made by him to the Excelsior Distilling Company, touching his financial condition; but that a month later he was obliged by his brother, T. A. Meysenberg, who had furnished him with the capital with which to carry on his business, to assign all his property to the latter in payment of his indebtedness to the latter. On the other hand, the defendant's testimony tended to show that, at the time when the plaintiff obtained from the Excelsior Distilling Company this advance of money and these goods, he represented to them that he owed no one but them, except one or two small bills amounting to...