White v. Int'l Text-Book Co.
| Decision Date | 02 July 1909 |
| Citation | 144 Iowa 92,121 N.W. 1104 |
| Parties | WHITE v. INTERNATIONAL TEXT-BOOK CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; Wm. Treichler, Judge.
Action for damages resulted in a directed verdict for defendants, and judgment thereon. The plaintiff appeals. Reversed.John N. Hughes, for appellant.
W. F. Fitzgerald and D. C. Harrington, for appellees.
This is an action for malicious prosecution. On an information, accusing plaintiff of the crime of embezzlement, filed with a justice of the peace of Marshall county by R. C. Griswold, at the instance of O. O. Crane, under direction of the International Text-Book Company, plaintiff was arrested and lodged in jail. After all the evidence had been introduced, the trial court, being of opinion that it failed to make out a case, directed the jury to return a verdict for the defendants. The correctness of this ruling alone is challenged on this appeal.
The plaintiff had been engaged in soliciting contracts for scholarship in the international correspondence schools of, and making collections for, the International Text-Book Company of Scranton, Pa., since January 28, 1907, but had not met expectations in the results accomplished, and on September 24th of that year was discharged. On that day, and the one before, he had collected $89.30 for the company, and so reported to the company, adding that he was holding the collections until it settled with him, and that he was ready to remit as soon as settlement could be made. Under the contract of employment he was not to “have the right to retain, for any purpose whatever, any moneys collected by him for said employers, but shall account for and deliver or transmit each day to the superintendent of said district, or other authorized representative of said employers, all moneys and contracts for scholarship received by him for them.” He was to bear his own expenses, and receive “a salary of two and sixty eight and one third one hundredths dollars per day, except Sundays, payable weekly,” and in addition certain commissions. Other conditions are not material. He received what is called a “window display outfit,” for which he agreed that $5 per month for four months should be deducted from his salary as a guaranty of its return in good condition. Should any parts not be returned, or be returned in condition unfit for use, schedule prices thereof were to be deducted from this $20, and also cost of repairing trunk in which display articles were packed, and the balance returned on the termination of the contract. Upon discharge he had delivered this trunk and outfit to Griswold, who was division superintendent, acting under the direction of Crane, the district superintendent, in pursuance of the agreement under which he received them, providing “that the amount deducted from my commissions shall be refunded to me upon the return of this window display outfit to the district office, less any charges as specified above, authorized by the superintendent of the district, and less the return transportation charges.”
It is important to note that plaintiff was to “account for and deliver or transmit each day to the superintendent of said district or other authorized representative,” and that his display outfit and trunk were to be returned to such superintendent who was authorized to make the deductions mentioned. On September 25th the district superintendent inquired by telephone whether plaintiff was going to turn over to the company the money collected, and was told by plaintiff that he was ready to settle, and would pay over the difference between what he owed to the company and what the company owed him. To this, according to plaintiff, Crane replied that, unless he sent the whole amount at once, he would have him arrested. Three days later Crane called on him, and refused an offer to pay the difference, and insisted that he remit the entire amount to the company, and receive what was due him from it, adding that he did not believe he intended to embezzle the money, but that he (Crane) must obey orders from the company or lose his job. Another call was made the same day, when the above threat is said to have been repeated. A week later Crane called, when plaintiff repeated his offer, which again was refused. This was repeated on September 14th, when Crane said plaintiff's salary and commission checks were there, save $4 of his salary, and he requested settlement without allowing the deposit for the trunk and window display outfit. Plaintiff declined to do this, but said that unless settlement was made, he would remit the difference to the company the next day. Crane replied that unless he settled the way proposed, the constable was there and would arrest him. Upon refusal the constable served a warrant as stated. After confinement four hours, he paid Crane the amount heretofore mentioned, less what was due him for salary and commissions, and also $10.40 as costs, and thereupon the constable released plaintiff, and the cause was dismissed by the justice of the peace. On the other hand, Crane denied having threatened to cause the arrest of plaintiff; testified that on September 30th he had telegraphed the company: and received the answer: Thereupon Crane consulted the attorney, and submitted the contracts with plaintiff; told him what he had said to plaintiff; explained that he could not settle with plaintiff because the latter should remit to the Chicago office, and he would receive his salary and commissions from the company; informed him how much was due plaintiff, and substantially all the details, save that plaintiff had repeatedly offered to pay the difference between what was owing to and by the company. Holt testified that Crane had said to him that plaintiff ...
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