20 N.Y.S. 204 | N.Y. Sup. Ct. | 1892
Lead Opinion
The grounds, in substance, upon which the defendants claimed to have probable cause, were that plaintiff had given them a larger order that fall than ever before; that his clerk had ordered of them a quantity of goods at an extravagant price, and on the same day had ordered of three other parties in Rochester goods to the amount, in the aggregate, of about $1,000; that a good many inquiries had been made of them as to the financial condition of plaintiff,—a thing that had never occurred before; that at the store of the plaintiff, just before the replevin suit was commenced, the plaintiff refused to give to Mr. Wile, one of the defendants, a statement of his financial condition; and that the amount of goods at the store was about $3,000, which Mr. Wile considered a small amount, and not enough to pay the plaintiff’s debts. The purchase from the defendants by the clerk of the plaintiff is denied by the clerk, and no goods were delivered. This circumstance must therefore be thrown out of view in determining the propriety of the nonsuit. It appeared from the defendants’ books that the plaintiff, in the fall of 1881, ordered nearly the same amount of goods, and in the fall of 1880 had ordered more; so that little or no force could be fairly given to the size of the order. Aside, then, from what occurred or was observed at the store, there were the other purchases at Rochester, and the inquiries made of the defendants. The .defendants knew that plaintiff had purchased from other people in Rochester before, and that it was customary in the trade to make inquiries of other merchants in regard to dealers. Mr. Wile, who acted for the defendants, testifies that he never inquired what the stock of plaintiff usually was, and had no information that he had secreted any goods, and made no inquiry on the subject. It is not suggested that he was informed by any one that plaintiff was insolvent. He testifies there was nothing that would indicate to his mind that plaintiff intended to fail in August when he bought the goods. It appears from defendants’ account that after the purchase in August plaintiff returned the goods purchased to the amount of $133, and he made payments to defendants to the amount of $833.27, including a payment of $37.27 on November 29th, the day before the replevin suit was commenced. These payments left nothing due the defendants on account prior to the August purchase. It seems to be very clear that the fact that plaintiff’s clerk bought of other parties goods to the amount of $1,000, and that other parties made inquiries of defendants as to plaintiff’s responsibility, furnished in themselves, and in view of the other conceded facts, no ground for defendants’ believing or suspecting that plaintiff intended to commit a fraud in his purchase in August. The main question, however, relates to what occurred or was observed at the store. Upon this there is a conflict in the evidence. The defendants give evidence tending to show that the goods at the store were of the value of only about $3,000, while evidence on the part of plaintiff is given tending to show that they were worth $9,000. Hone of the debt to defendants was then due. Wile, however, asked the plaintiff for a payment, saying that his firm needed the money. Plaintiff declined to make any payment, saying, in substance, that he wanted to use what money he then had to pay debts that were due, and that he would pay the defendants when their debt was due. Wile then asked for a statement, and, as he testifies, stated as reasons therefor that plaintiff had bought more goods than usual; that many inquiries had been made
Judgment reversed, and a new trial ordered, with costs to abide the event.
Martin, J., concurs. Hardin, P. J., dissents.
Statement by dissenting;
Appeal from a judgment entered the 13th of May, 1891, in Onondaga county clerk’s office upon and after a nonsuit granted at the circuit in that county, dismissing the complaint upon the merits. On the 30th day of November, 1882, the defendants commenced an action in replevin to recover “quantities of clothing to the amount of $882.50, ” which they had theretofore sold to the plaintiff, a retail dealer residing in the village of Skaneateles, from their store in the city of Bochester. Before the action was commenced the defendant Wile had an interview with the plaintiff, and in that interview sought to obtain a statement of the financial standing and affairs of the plaintiff. The plaintiff refused to make such a statement, or to make a disclosure of his affairs. Upon the trial of the replevin action at the March circuit in 1886 a verdict was rendered for the defendant in that case, the plaintiff here. This action was commenced May 19, 1887, and in the complaint it is alleged that all the “acts performed by the defendants and by their direction were without any probable cause whatsoever, and were done maliciously, for the purpose of injuring the plaintiff among merchants and in the community in which he he resided, and for the purpose of extorting from him, before the maturity of his obligations, the contract price of the goods purchased by the plaintiff from them. ” It appears the plaintiff commenced business at Skaneateles in March, 1879, and become a customer of the defendants, then doing a business in the city of Bochester, and made purchases prior to the replevin action amounting to some $6,500, on credit. In the fall of 1882 the plaintiff purchased of the defendants goods to the amount of about $1,015.50. Subsequently $133 in value thereof were returned,- so that there remained a balance of $882.50 at the time of the commencement of the replevin action on the 30th of November, 1882. One of the defendants went to the city of Syr
Dissenting Opinion
(dissenting.) According to well-recognized authorities, the burden was upon the plaintiff to establish by his evidence “a want of probable cause for the prosecution instituted against him, and malice on the part of the defendant.” Heyne v. Blair, 62 N. Y. 19. In Miller v. Milligan, 48 Barb. 47, the court, in dealing with the rule, used this expression: “The plaintiff must establish that there is no color for the charge.” It is equally well established by authority that probable cause does not depend upon the actual state of a case in point of fact, but in the honest and reasonable belief of the party commencing the prosecution upon the facts, circumstances, and appearances within his own knowledge and belief at the time of instituting the prosecution. In Stewart v. Sonneborn, 98 U. S. 195, it was said: “The conduct of the defendants is to be weighed in view of what appeared to them when they filed their petition in the bankrupt court; not in the light of subsequent appearing facts. Had they reasonable cause for their action when they took it ? Not what the actual fact was, but what they had reason to believe it was.” That case is also an authority to the effect “that malice alone, if there was such, is insufficient to entitle the plaintiff to recover;” and also that “although the jury may infer malice from the want of probable cause, proof even of express malice will not justify the inference that probable cause did not exist.” And in Hazzard v. Flury, 120 N. Y. 223, 24 N. E. Rep. 194, it was said in the course of the opinion (page 227, 120 N. Y., and page 195, 24 N. E. Rep.:) “Probable cause maybe founded upon misinformation as to the facts; not as to the law.” In the course of the opinion the judge refers to Carl v. Ayers, 53 N. Y. 14, approvingly, and takes from the opinion in that case the following: “If the apparent facts are such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged, he will be justified, though it turns out that he was deceived, and that the party accused was innocent.” When the motion for a nonsuit was made and decided there were in the evidence before the court several facts and circumstances relative to the action of the defendants in commencing proceedings in replevin on the 30th of November, 1882, to recover from the plaintiff here the property which had passed to his possession under negotiations for the purchase thereof from the plaintiffs in the replevin action, who are the defendants here. In considering the motion made at the circuit, the trial judge was called upon to determine whether all the facts and circum
2. After the replevin papers were placed in the hands of the sheriff, and while he was about executing them, the plaintiff sought the service of Mr. George Barrow, an attorney, who resided at Skaneateies, who visited the store while the sheriff was selecting the goods required, to be taken in virtue of the replevin proceedings. When Mr. Barrow reached the store he entered into a conversation with Mr. Stern, who was then acting as attorney for the defendants, and Mr. Barrow states that that conversation “ was when they were in the act of taking the goods. ” The details of that conversation, were objected to and apparently excluded on the ground that they were not in the presence of the defendant Wile, and that the conversation was after the action was commenced. The plaintiff took an exception to the ruling excluding the details of that conversation, and calls our attention to Fagnan v. Knox, 66 N. Y. 525. In that case it was said that if a party “had knowledge of facts which would explain the suspicious appearances, and exonerate plaintiff, he cannot justify the prosecution by putting forth the prima faeie circumstances, and excluding those thus within his knowledge tending to prove innocence.” Inasmuch as the action had been commenced before the conversation ensued between the attorneys, it is not apparent how the conversation between the attorneys could shed any light upon the determination theretofore made by the defendant under the advice of his attorney that there were reasonable grounds upon "which to predicate the proceedings for the recovery of the property. In making that determination it is evident the defendant Wile acted upon such information, knowledge, and the conduct of the plaintiff in refusing to make a statement or to disclose the conduct of his affairs prior to the time when the plaintiff sent for and employed Mr. Barrow in his behalf. In the course of the opinion delivered by the trial judge at the time of granting the motion he said: “The question is whether there is an absolute want of facts and circumstances developed by the evidence in this case that strips it entirely of every element of probable cause", so as to charge the defendant in the action with damages. It does not seem to me that the evidence tends to that result; that the most that can be said about the evidence is that the parties, the defendants in this action, predicated their right to a restoration of the goods which were sold in August and delivered in October upon the ground that he got them with intent not to pay for them; and, having obtained the goods, they then discovered certain facts and circumstances from which they concluded that such an intent existed, to wit, that the plaintiff in this action (the defendant in the replevin suit) was buying largely of goods, stocking his store
The foregoing views lead me to advise an affirmance of the nonsuit.
