Allen v. Codman

139 Mass. 136 | Mass. | 1885

Holmes, J.

The main question in this case is whether the court below was right in ruling that there was probable cause for the defendant’s suit in ejectment. It seems that the ground relied on at the trial of that suit was an alleged breach of condition in the lease to the present plaintiff (the defendant in that suit). The breach consisted in taking down a back wall, which act, it was alleged, affected, or was liable to endanger or affect, the insurance on the building.

At the trial of the present cause, evidence of experts was put in, without objection, on both sides of the question whether the risk was injuriously affected by the change. Of course, if the defendant’s experts were believed, he not only had probable cause for his ejectment, but ought to have prevailed in it. We can see nothing in the bill of exceptions that would warrant the suggestion that the defendant’s experts, even if mistaken, were not testifying honestly; and if they did honestly hold the opinion which they testified to, and the question was one which depended upon expert opinions for its answer, the defendant had probable cause for his suit, because he knew their opinions before bringing it. But it may be suggested that, if the plaintiff did not believe those opinions, his knowledge of them would not be a justification. Ño doubt there are cases in which it could not be said that the defendant acted on probable cause, if the state of facts was such as to have no effect on his mind. Broad v. Ham, 5 Bing. N. C. 722, 725. But we should be slow to admit that a man had not probable cause for trying his rights upon a civil issue depending upon expert opinions, when he knew that reputable experts entertained an opinion, and were ready to testify, in his favor, merely because his judgment did not coincide with theirs; more especially when, as we must assume in this case, he is not himself an expert in the matter. But however this may be, we see no evidence that the defendant did not believe that the insurance was affected and the conditions of the lease broken. On the contrary, beside the action of the insurance agents, in notifying him that the removal of the wall had avoided the insurance, and in demanding an additional premium, he was ’ advised by his counsel that the conditions had been broken. There is no dispute that the advice was honestly given, and we can find no evidence that it was not believed. Supposing that it might have been open to argue that the defendant was acting from other motives, that fact would have made no difference unless he also believed that the advice of his counsel was wrong. If he believed the advice, he had probable cause. Stone v. Swift, 4 Pick. 389. Olmstead v. Partridge, 16 Gray, 381, 383.

The failure of the ejectment suit is not of itself evidence of want of probable cause. Stewart v. Sonneborn, 98 U. S. 187, 195. Vanderbilt v. Mathis, 5 Duer, 304. See Cloon v. Gerry, 13 Gray, 201. And on the whole case we are of opinion, not only that the plaintiff failed to sustain the burden of proof resting upon him by any evidence, but that the undisputed facts justified the ruling of the court.

The ruling that, if the plaintiff relied on the alleged malicious prosecution, the allegation of an entry in the same count could be proved only as matter of inducement, and not as ground of substantial damages, was correct. A cause of action for trespass cannot be joined in one count with one for malicious prosecution. Exceptions overruled.