Webster v. Fowler

McGrath, J. It is a well-established rule of law that-the-advice and concurrence of a public prosecutor is not. a good defense to an action for malicious prosecution unless it appears that the defendant fully and fairly disclosed to such officer everything within defendant’s knowledge which would tend to cause or to exclude belief in plaintiff’s guilt; and whether the defendant did make-a full and fair disclosure to the district attorney was a. matter for the jury to determine, and not for the trial court or this Court. Plaintiff, upon a complaint made by defendant, -had been arrested, jailed, afterwards admitted to bail, and finally discharged upon Ms preliminary examination, upon-a full disclosure of the facts, all of which were within defendant’s hnoioledge when he made the complaint. Defendant should have disclosed all the facts, — as well those-tending to show innocence of any criminal intent as those tending to criminate; and, being himself a lawyer, he is presumed to know the relevancy and materiality of the facts and circumstances which would tend to exclude a belief in plaintiff’s guilt. He not only did not disclose the facts, but he forwards the letter to the district attorney, informing him that it is an attempt at black-mail. The district attorney prepares the complaint, and forwards it to defendant, directing him that,— “ Should there be anything in the circumstances that I have not understood, correct the form and statements of fact until it shall properly describe it.” Defendant then makes the complaint, charging plaintiff with having devised a scheme and artifice to- defraud defendant, said scheme being to procure by fraud and [305] artifice from defendant the sum of $25 by threatening to publish certain slanderous and false things concerning defendant. Defendant had advanced $25 to one Layden. The company had reimbursed him. Defendant claimed that plaintiff was directed by a resolution passed by the board of directors in August, 1887, to charge the amount up to Layden, and that plaintiff had neglected to make the charge. Plaintiff denied that he had ever been so directed,, or that any such resolution had ever been' offered or passed by the board, or that at any time ' the company-owed Layden $25. The records of the company which were kept of that meeting show no such resolution, and others who were present at the meeting testify that no such resolution was offered. Defendant presented several bills at that meeting for moneys paid out by him, and he was allowed the sum of $141, which included the $25 paid Layden, but that amount was paid in stock, and no entry was made on any other book of such allowance or payment. Afterwards, in 1888, in settling up with plaintiff, the company, at the instance of defendant, deducted this amount from the balance due plaintiff, but plaintiff did not know of that fact until afterwards, as his claim involved several unsettled matters. Upon; the trial Layden testified that defendant had offset that $25 against certain moneys paid to defendant by Layden.. These facts were not disclosed to the district attorney, and it is but fair to presume that, if they had been, he-would not have advised a complaint. Plaintiff was, at the date of writing the letter, ignorant of the last deal between Layden and defendant, but defendant knew all about it when he made the complaint. Defendant was a. large stockholder in the company, and if plaintiff never had been directed to charge the amount to Layden, and [306] it was at'defendant's instigation that plaintiff was compelled to pay it, defendant was morally bound to right the wrong done, and the threat to expose the transaction was not an attempt to extort money from defendant or to black-mail him, nor would the publication of those facts be either slanderous or false. It was not necessary upon the trial of the criminal case that plaintiff should show a pending legal obligation on defendant's part to pay plaintiff the sum of $25 to establish his innocence. If defendant had received this $25 the second time from Layden, he was then bound in good conscience to pay it over to plaintiff, instead of causing his arrest and imprisonment for demanding it. I think, however, that the judgment should be reversed because of prejudicial error in the court’s charge to the jury. Layden testified that he was in possession of certain premises under a land contract with defendant. He had paid $36 upon this land contract. Layden testified that Fowler had in the fall of 1887 sent a bill to witness for rent. “ I bought a place of ■ him, and he wanted rent. He said the contract was due, and I told him that I guessed not; it wasn't due until March, 1888, the first payment; and he said, 'Well, this $25 that I let you have to go south with, and with what you have paid on the contract, we will call it paid, and give up the contract.’ He said, fIf you want to stay there, you will pay rent this winter;' and I went on and paid rent until April, and then went to Muskegon. “Q. Do I understand you to say that [contract] was canceled ,on account of that $25? “A. Yes, sir, that is what he told me. I paid rent from that time." In relation to the same matter defendant testified: “We were talking in the office, and he was speaking about it. He hated to give up his dwelling, and I called [307] his attention to the fact that he had had the use of it for over a year and a half without any pay whatever; that he was really owing me about $100; that I had also advanced $25 for him to go to Hot Springs and taken my pay in company stock, and I thought I had lost enough, as he was worth nothing, and I had to stop there. I told him that was the end of it.” The court, referring to the matter, instructed the jury as follows: “The plaintiff in this suit was by resolution or some action of the company charged with this $25. It was taken out of his wages on settlement afterwards, and Mr. Fowler collected this money back from Mr. Layden. These facts stand out in this case as proven.” Counsel for defendant interrupted the court, saying: “It is not conceded that he ever collected that money back from Mr. Layden. That is denied by the defendant. “Tim Court: The evidence tends to show it on the part of Mr. Layden, — that is, the evidence on the part of the plaintiff.” Defendant insisted that he had acted in good faith. Whether or not he had twice collected this money, once from the company and again from Layden; whether he had caused plaintiff to be charged with the amount, and afterwards collected it from Layden, — were important questions bearing upon defendant’s good faith. Defendant’s version of the transaction was consistent with good faith. The testimony regarding it was conflicting, but the court instructed the jury that the version of the transaction as related by Layden was proven. For this error the judgment must be reversed, and a new trial ordered. Champlin, C. J., Morse and Long, JJ., concurred with McGrath, J.