139 Cal. App. 244 | Cal. Ct. App. | 1934
From a judgment in favor of defendant entered on the verdict of a jury in Ms favor upon direction of the court, plaintiff has appealed.
Prior to February, 1929, plaintiff was the owner of an apartment house in Oakland, encumbered by a first trust deed and upon which she herself had placed a second trust deed. The El Merrie Del Corporation (apparently owned or controlled by defendant) owned some lots in Los Angeles County. A deal was made by which plaintiff exchanged her apartment house for certain notes secured by trust' deed on an agreed number of said lots.- The lots were deeded by defendant to one Noble, who executed the notes and trust deeds. Plaintiff executed a deed to her apartment house in blank and delivered same to one McDonnell, who caused to be inserted therein the name of one Janssen, who in turn with his wife executed a deed to defendant. The taxes, interest, insurance and rents on and from said apartment house were to be prorated as of February 1, 1929, “out of escrow’’. Plaintiff paid the amounts required of her to settle her share thereof to Mr. McDonnell, through whom the deal was made, plaintiff’s son, Nathan A. Naylor, representing her by power of attorney. McDonnell testified that he in turn paid said sums to defendant. Defendant employed plaintiff to manage the apartment house at an agreed salary. The owner of the second trust deed thereon, not receiving his interest, asked plaintiff for it. Finding that defendant was the new owner of the apartment house and that plaintiff had paid her pro rata portion of the interest in making the deal, he wrote defendant, requesting payment. Plaintiff sent defendant a check for the rents collected up to March 17, 1929, less expenses and salary, amounting to $684.03. Plaintiff’s son met defendant accidentally in Los Angeles about that time and says he asked defendant why he did not “pay our interest and taxes that are due on our first and second trust deeds . . . due to the fact that you have received the money which, according to Mr. McDonnell, has been given you, amounting to some
Thereafter plaintiff brought suit in Oakland against defendant, McDonnell, and other parties connected with the exchange, for damages claimed to have resulted from the alleged fraudulent acts of said defendants in obtaining the deed to the apartment house. Such action went to the jury on October 29, 1929, which returned a large verdict in favor of the plaintiff and against McDonnell and another defendant but in favor of defendant Peters. While plaintiff was shaking hands with the jurors who returned the verdict she was arrested on a warrant issued on a complaint sworn to by defendant here charging her with embezzling $111.10, being rent collected in March by her and being a part of the rent covered by the check on which payment was stopped. Plaintiff was found not guilty by the jury before whom she was tried on such charge, and in this action sought damages against defendant for alleged malicious prosecution. At the close of the evidence defendant’s motion for a directed verdict on the ground that the evidence showed there was probable cause and that the action was taken on advice of counsel was granted, resulting in the judgment from which this appeal is taken.
It is the contention of appellant that the court erred in taking the case from the jury.
To make a case of malicious prosecution the evidence must not only establish lack of probable cause, but it must show the existence of malice, which may be inferred by
Judgment reversed.