Moscot v. Frank Ridlon Co.

Hammond, J. This is an action to recover damages for a malicious action. The burden was upon the plaintiff to show that the defendant had instituted the action against him maliciously and without probable cause and that the action had been terminated in his favor. [195] There was no dispute that the original action was brought by the defendant and that after a trial upon the merits it was terminated in favor of the plaintiff. And while the evidence as to the want of probable cause and malice was conflicting and a verdict in favor of the defendant reasonably might have been anticipated, still the jury would have been justified in finding that the first bill was for the whole work, that it was so represented by the defendant to the plaintiff, and that the plaintiff so understood and had the right so to understand at the time he paid it, and that whether or not this state of things was due to some mistake on the part of the defendant’s agents or servants, still the defendant had no valid claim against the plaintiff for the second bill, that the defendant knew this and so knowing brought the action upon it, and with the hope of forcing the plaintiff to pay used somewhat drastic measures in its prosecution. Upon such findings of fact want of probable cause could have been found. Malice may be inferred from want of probable cause. Ripley v. McBarron, 125 Mass. 272. The case was properly submitted to the jury. If there was any error in the admission of the contents- of the letter alleged to have been sent by the plaintiff to the defendant, it was cured by the subsequent testimony of Albert Moscot, the son of the plaintiff. The other exceptions are not argued on the defendant’s brief, and in view of their nature we consider them waived. Exceptions overruled.