The question in this case is whether plaintiff proved at trial a case of malicious prosecution against the defendant. Withdrawing the issue of whether the criminal proceeding had terminated in plaintiff’s favor, the Trial Court (Loughlin, J.) submitted the issues of the defendant’s malice and lack of probable cause to the jury which returned a verdict for the plaintiff. The defendant’s exception to the denial of its motion for a nonsuit was transferred to this court.
Plaintiff worked for the defendant as a contractor to install overhead doors. On one job in August and September 1969, plaintiff performed some “extra work” for the defendant, involving the preparation of door openings prior to installation of the doors, and billed the defendant for these extra services. A dispute arose over defendant’s liability to the plaintiff for this work, andplaintiff terminated his association with the defendant. Plaintiff refused to return the defendant’s welder and other installation equipment which lie regularly kept on his truck and informed the defendant that he would keep the equipment until he was paid in full for his extra work. After several unsuccessful requests for the return o,f the equipment, defendant consulted its attorney, Morris Stein. Mr. Stein sent the plaintiff a demand letter stating that a warrant would be issued for plaintiff’s arrest for unlawful retention of the equipment if it were not returned “forthwith.” Eight days after this letter was mailed to the plaintiff he was arrested upon an arrest warrant and complaint for embezzlement procured by an agent of the defendant upon the advice of Mr. Stein. Just prior to a court appearance the next day, both parties and their counsel agreed that the criminal action would be nol prossed in exchange for a return of the equipment by the plaintiff.
*350 The equipment was then promptly returned and several days later the criminal action was nol prossed. Plaintiff subsequently instituted this action for malicious prosecution and another action for compensation for his extra work.
To prevail upon a claim of malicious prosecution, a plaintiff must prove that he was subjected to a criminal prosecution instituted by the defendant without probable cause and with malice, and that the criminal proceeding terminated in his favor.
MacRae v. Brant,
While occasionally producing a harsh result, this rule is generally sound and well established. “By the overwhelming weight of authority, where the prior proceeding was ended by a compromise or settlement, voluntarily and understanding^ consummated by the accused, there is not such a favorable termination as will support the action.” Casenote,
Malicious Prosecution
— Compromise
of the Criminal Proceeding as a Bar,
3 Vand. L. Rev. 841, 842 (1950);
accord,
W. Prosser,
supra
§119, at 838-40; Restatement (Second) of Torts §660 (a) (Tent. Draft No. 13, 1967). “To show a termination in his favor, the plaintiff must prove that the court passed on the merits of the charge or claim against him under such circum
*351
stances as to show his innocence or nonliability, or show that the proceedings were terminated or abandoned at the instance of the defendant under circumstances which fairly imply the plaintiff’s innocence. Thus, if the complaint is dismissed either by reason of insufficient evidence or because the complaining witness fails to appear or abandons the prosecution [as in
MacRae v. Brant,
In
Lamprey v. H. P. Hood Sons
we stated that whether a court should grant a plaintiff’s motion for a nonsuit based on a nol pros depends upon “whether the entry was procured by the plaintiff or was made in consequence of a compromise to which he was a party. If it was caused in either of these ways, it was not such a termination of the case as will support this action .. ..”
The question of “whether the entry [of a nol pros] was procured by the plaintiff or was made in consequence of a compromise to which he was a party .... is a pure question
*352
of fact.”
Lamprey v. H.P. Hood & Sons,
Where as here the facts clearly and indisputably establish that a compromise for the disposition of the criminal action was procured and voluntarily entered into by the plaintiff, he may not prevail in a malicious prosecution action. Under these circumstances the defendant’s motion for a nonsuit should have been granted.
Leonard v. George,
Although the defendant prevails on the evidence in this case, we think it important to note that it is impermissible to use the criminal process to achieve solely civil ends. A private prosecutor using the criminal process solely to collect a debt, recover property, or enforce some other claim may well be liable to the accused for malicious prosescution. Annot.,
Exception sustained; judgment for the defendant.