Wiesinger v. First Nat. Bank

• Decision Date: 13 July 1895
• Citation: 64 N.W. 59,106 Mich. 291
• Court: Michigan Supreme Court
• Parties: WIESINGER v. FIRST NAT. BANK OF CITY OF BENTON HARBOR.

64 N.W. 59

106 Mich. 291

WIESINGER v. FIRST NAT. BANK OF CITY OF BENTON HARBOR.

Supreme Court of Michigan

July 13, 1895

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

Action by John G. Wiesinger against the First National Bank of City of Benton Harbor for malicious prosecution. Verdict was directed and judgment entered for defendant. Plaintiff brings error. Reversed.

G. M. Valentine and W. C. Hicks, for appellant.

Victor M. Gore and George S. Clapp, for appellee.

LONG J.

This action is brought to recover damages for maliciously suing out a writ of attachment against the property of the plaintiff by the defendant bank. The affidavit upon which the writ of attachment was issued was made by the president of the bank, and alleges, among other things, that the defendant in the writ (the plaintiff here) was indebted to the bank in the sum of $750 which amount was then due upon express contract. The causes for the issuing of the writ are stated to be that the defendant in the writ "is about to remove his property out of the state with intent to defraud his creditors; that the defendant is about to abscond from the state to the injury of his creditors; and that he has assigned his property with intent to defraud his creditors." The affidavit was made on September 30, 1893. The indebtedness consisted of three notes, aggregating $750. Among these notes was one for $600 which plaintiff in this suit claims was not due at the time suit was brought upon it. The court below directed verdict in favor of defendant on the ground that it was acting upon the advice of counsel, to whom had been communicated all the facts in relation to the matter. It appears from this record that the last day of grace on the $600 note was Saturday, September 30, 1893, the day upon which the attachment was issued. Mr. Wiesinger had all that day in which to pay this note. 2 Am. & Eng. Enc. Law, p. 396. The suit was therefore prematurely brought on the note, and the bank had no legal right to an attachment for the amount it claimed to be due. Estlow v Hanna, 75 Mich. 219, 42 N.W. 812; How. Ann. St. �� 7986 7987. The bank officers apparently knew this. Mr. Bailey, the president, testified upon that subject as follows: Q. "Did you ask Mr. Gore [counsel for the bank] whether suit could be brought on this note the 30th of September, or not?" A. "We had enough that was already past due. There was some discussion as to how much was due." Q. "So that, as to the question whether the suit could be brought on that note of $600, September 30th, you didn't ask Mr. Gore at all?" A. "No, sir; not as to whether suit could be brought. I did ask him this. He said we were not obliged to lie down, and see the property run away from us, even if the paper was not due." Q. "So that you considered that the note was not due so that suit could be brought upon it." A. "I should consider that a man had until 4 o'clock of that day to pay that paper in." Q. "You knew there could be no suit brought on that note on the 30th of September; at least you believed that?" A. "Not until the close of business; but still-" Q. "You had not yet got to the opening of business on the 30th?" A. "No sir." Mr. Bailey also testified that he knew what the law was as to time of notes falling due. Mr. Gore testified that Mr. Bailey told him that he thought the $600 was due. He was asked: "You say yourself, you didn't examine the note?" A. "I didn't. Didn't see it at all. Never saw it until it was here." Q. "You did not stop to see whether the days of grace had expired or not?" A. "Mr. Bailey is a banker. He said it was due." Q. "Did you examine the note at all, or ask any question about whether the days of grace had expired?" A. "No, I simply asked when it was due." Q. "You left that to him, didn't you?" A. "Didn't leave anything to him; never considered it." Q. "You asked him if it was due, and he said it was?" A. "Yes, sir; he went to ascertain that fact." Witness further said: "My idea at that time was that the note could be sued on that day. There is authority for that...