Pawlowski v. Jenks

• Decision Date: 15 December 1897
• Court: Michigan Supreme Court
• Parties: PAWLOWSKI v. JENKS.

73 N.W. 238

115 Mich. 275

PAWLOWSKI v. JENKS.

Supreme Court of Michigan

December 15, 1897

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Frank Pawlowski against George W. Jenks for damages for malicious prosecution, and for his refusal, as a member of the common council, to approve plaintiff's liquor bond. Judgment for defendant, and plaintiff brings error. Affirmed.

Wm Stacey and J. R. Nolan, for appellant.

John F Murphy and Bacon & Palmer, for appellee.

MONTGOMERY J.

In November, 1891, the defendant and Jeremiah Jenks commenced a suit in the circuit court for the county of Huron, in chancery, to restrain the plaintiff from carrying on the business of selling intoxicating liquors in a certain building owned by him in the village of Sand Beach. The suit was based upon a clause in the deed prohibiting the grantees from carrying on such business. A preliminary injunction was issued, issue was joined in the case, and the testimony was taken in open court; and on the 3d day of November, 1892, a decree was rendered in favor of the complainants in that case, perpetually enjoining the plaintiff from carrying on the sale of liquors upon said premises. The case was afterwards appealed by Pawlowski to the supreme court, and the decree was reversed and the bill of complaint dismissed; the case being reported in 98 Mich 110, 56 N.W. 1105. Subsequently the plaintiff brought this action against the defendant to recover damages for the malicious prosecution of the suit in chancery, and also for the action of the defendant, as councilman of the village of Sand Beach, in refusing to approve plaintiff's liquor bonds. The case was tried before Hon. George S. Hosmer circuit judge, who directed a verdict for the defendant. Plaintiff brings error.

The evidence on the trial showed that all the facts were stated by defendant to his counsel before the chancery suit was instituted, and that he was advised that the complainants in that suit had a meritorious suit. This testimony is uncontradicted, and there are no circumstances which authorize an inference that defendant did not act in good faith. Under such circumstances, the advice of counsel made out a case of probable cause. Le Clear v. Perkins, 103 Mich. 131, 61 N.W. 357; Poupard v. Dumas, 105 Mich. 326, 63 N.W. 301. Plaintiff's counsel contends that probable cause cannot exist where good faith is lacking, and cites Harris v. Woodford, ...