Wuest v. American Tobacco Co.

• Decision Date: 11 January 1898
• Citation: 73 N.W. 903,10 S.D. 394
• Parties: WUEST et al. v. AMERICAN TOBACCO CO.
• Court: South Dakota Supreme Court

73 N.W. 903

10 S.D. 394

WUEST et al. v. AMERICAN TOBACCO CO.

Supreme Court of South Dakota

January 11, 1898

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by V. J. Wuest and another, partners as Wuest Bros., against the American Tobacco Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

John E Carland (F. W. M. Cutcheon, of counsel), for appellant. A. B Kittredge, for respondents.

FULLER J.

This action for damages arising from the malicious prosecution of a civil action aided by attachment resulted in a judgment for plaintiffs, from which, and an order overruling a motion for a new trial, the defendant appeals.

It is admitted and stipulated: "That plaintiffs, as co-partners, resided and were engaged in business at Sioux Falls, in this state; that defendant is a corporation existing under the laws of New Jersey; that defendant commenced an action in the district court of the state of Minnesota within and for Ramsey county, and attached certain property in that state, belonging to plaintiffs; that when such action was heard judgment was entered therein in favor of plaintiffs; that at various times between the 21st day of October, 1892, and the 9th day of June, 1893, the above-named defendant, at the special instance and request of said plaintiff firm, sold and delivered unto said plaintiffs certain goods, wares, and merchandise, to wit, tobacco and cigarettes, which were then and there of the value and reasonably worth the sum of two hundred and seven dollars and seventy cents, and for which said plaintiffs then and there promised to pay said sum of two hundred seven dollars and seventy cents; that on or about said 21st day of October, 1892, said plaintiffs, by a letter in writing, addressed to defendant, dated at and written from said Sioux Falls, South Dakota, and thereafter received by said defendant, stated to said defendant as follows: 'At any time our bills are due, draw through Merchants' Bank of this city;' that, in pursuance of said statement so received from said plaintiffs, said defendant, on or about the 1st day of May, 1893, and after the amount was due and owing by plaintiffs to defendant, drew upon said plaintiffs through the Merchants' Bank of Sioux Falls, South Dakota for the sum of seventy-two dollars and forty-five cents, whereby it requested and required said plaintiffs to pay to the order of said defendant the said sum of seventy-two dollars and forty-five cents, and that said draft duly indorsed by said Merchants' Bank of Sioux Falls, South Dakota, with the request to collect the same, and remit the proceeds thereof to the defendant; that thereafter said defendant, in pursuance of said statement so by it received from said plaintiffs, did again during said month of May, 1893, and after the amount thereof was due and owing by plaintiffs to defendant, draw its draft upon said plaintiffs, through said Merchants' Bank of Sioux Falls, South Dakota, for the sum of one hundred and thirty-five dollars and fifty cents, whereby it requested and required said plaintiffs to pay to the order of said defendant the said sum of one hundred thirty-five dollars and fifty cents, and that said draft, duly indorsed by defendant, was then and there sent by said defendant to said Merchants' Bank of Sioux Falls, South Dakota, with a request to collect and remit the proceeds thereof to defendant; that between the 1st day of May, 1893, and the 17th day of the same month, each of said drafts was by said Merchants' Bank presented to said plaintiffs, and said plaintiffs paid the same to said Merchants' Bank; that, subsequently to said transaction between said Merchants' Bank and said plaintiffs, said Merchants' Bank became insolvent, and closed its doors, and said Merchants' Bank has not, nor has any other person, paid said drafts so drawn upon plaintiffs, other than as stated therein; and that the action commenced by defendant in the district court of Ramsey county, Minnesota, against the above-named plaintiffs, and in which an attachment was issued, as set forth in plaintiffs' complaint, was brought for the demand represented by said drafts and the tobacco and cigars herein stated to have been sold to the above-named plaintiffs; that Flandreau, Squires & Cutcheon, defendant's attorneys in the attachment suit, are reputable lawyers, residing at St. Paul, in Ramsey county, Minnesota."

The testimony, so far as essential to a determination of the questions of law presented will be noticed in the opinion. At the close of all the evidence, defendant moved the court to direct a verdict in its favor, for the reason that the same did not entitle plaintiffs to recover, in this: that the plaintiffs have not shown that the action commenced in Minnesota was commenced with malice, and without probable cause; which motion was denied, and defendant duly excepted.

The court gave the following instruction, to which the defendant duly excepted: "The facts in the case are not disputed. They are admitted and introduced in evidence here upon a written stipulation of facts between the parties. So it becomes the duty of the court to declare to the jury whether or not there was a reasonable cause; whether or not, under the facts in this case existing at the time that attachment was brought, the American Tobacco Company had any reasonable grounds to believe that Wuest Brothers were indebted to them. It is a matter of law that the court is bound to declare to the jury; that the court instructs the jury that these facts laid down in evidence here, chiefly in this written stipulation, do not show the presence of any probable cause whatever. On the contrary, they show, as a matter of law, on these facts the American Tobacco Company had no claim whatever against Wuest Brothers; no ground, in law or in fact, on which to bring that action in Ramsey county Minnesota. But that is not enough to establish a cause of action in this case, because, as has been stated in some of these other instructions, if they acted honestly upon the advice of couns...