| Mich. | Jan 22, 1895
The defendants were copartners doing a manufacturing business in Tecumseh. Plaintiff was their-trusted clerk and employé, keeping their books, and having the substantial charge of the business. Plaintiff entered their employ March 17, 1888, under a verbal contract, claimed by him to be for a year, but by the-defendants to be indefinite as to time. The salary was at-the rate of $1,000 per year, payable monthly. Plaintiff' took his pay monthly, and charged it to himself upon the-books. The banking business was done with the banking" house of O. P. Bills & 0o., Mr. Bills being one of the-defendants. On but one occasion previous to the one now" in question had the plaintiff discounted any paper of the-firm, or done any banking business, with any one but. O. P. Bills & Co. Defendants testified that they instructed plaintiff to do all his business at that bank.. Plaintiff testified that he was not so instructed. The partnership of the defendants was formed in January, 1888, to continue for a year. Early in December, 1888, plaintiff came to the conclusion that defendants intended to dispense with his services. The only reason he had for-
“ So [after that company’s refusal] then I paid myself before I had any talk with either of the defendants about ■it. I did not present a bill to the defendants, nor say .anything to them about it, because I thought when I saw them it might be under adverse circumstances.”
Plaintiff admitted that he knew he had no right to take the money in payment of this unearned salary; that he knew he would be liable to • the defendants in a civil action for its recovery. He refused to pay it back when demanded, and told his employers that he intended to keep it. He testified:
" I took this note to Toledo for the purpose of getting the money -for myself out of it. That is one of the main purposes. There might have been some minor reasons, but I do not think of any now. If I had discounted it at the bank of O. P. Bills & Co., I would not have been*9 liable to have gotten the money upon my salary. I would probably not have received it. * * * I never intended to pay that money back in the world. If I had, I should not have appropriated it at that time. I suspected that I was taking this money in a manner that might leave me liable to a suit, yes, in a civil way. * * * I knejv that I had not earned it. * * * I knew that defendants were abundantly responsible."
The defendants made a substantial statement of the facts to Mr. Watts, an attorney of experience and good standing, who advised them that the plaintiff was, guilty of embezzlement under the statute, and that they further advise with the prosecuting attorney, which they did. He advised the prosecution, which was instituted. Upon the examination, which was conducted by the prosecuting attorney, the plaintiff was discharged, whereupon he instituted this suit for malicious prosecution, in which he recovered verdict and judgment.
The burden of proof was upon the plaintiff to show want of probable cause. A prima faoie case may be made by showing a plaintiff's discharge, but it is not conclusive. In this case there is no dispute as to the facts. It is the settled rule in this State that, the facts being conceded, want of probable cause is a question of law to be determined by the court. If there is a conflict of evidence" as to the facts claimed by the plaintiff to show this, it is the duty of the court to instruct the jury clearly what facts, when established, will justify a finding of want of probable cause. A general charge is not sufficient. Hamilton v. Smith, 39 Mich. 222; Wilson v. Bowen, 64 Id. 133; Huntington v. Gault, 81 Id. 144; Ball v. Rawles, 93 Cal. 222. See, also, Perry v. Sulier, 92 Mich. 72" court="Mich." date_filed="1892-06-10" href="https://app.midpage.ai/document/perry-v-sulier-7935890?utm_source=webapp" opinion_id="7935890">92 Mich. 72; Harris v. Woodford, 98 Id. 147.
The court in the present case did not instruct the jury as to what facts relied upon by the plaintiff would constitute want of probable cause. The court, however, should
Judgment reversed, and no new trial ordered. The defendants will recover the costs of both courts.