Opinion by
This is an appeal from a judgment for plaintiff obtained in an action for alleged malicious prosecution. Appellant сontends the court should have directed a verdict for him or should subsequently have entered judgment ñon obstante veredicto upon the ground that plain
The decision must be governed by Robitzek v. Daum,
He testified that he had received the check for $100 and that he had not delivered it to the corpоration but that he had ultimately returned it to the man from whom he received it, without advising his employer what he had done with the check. A number of other checks made payable to the corporation, which plaintiff endorsed in the name of the corpоration and collected, were received in evidence. He testified that he had been authorized by an officer of thе company to use them.
Excluding the magistrate who produced his docket showing the issuance of the warrant and proceedings thereon, the only witnesses called were plaintiff and defendant. The evidence of the plaintiff alone, without considering thе denials of part of plaintiff’s testimony by defendant or the advice of counsel upon which defendant testified he acted in instituting thе prosecution, is such proof of probable cause for the prosecution as prevents recovery in this actiоn. The learned trial judge should therefore have affirmed defendant’s point for binding instructions or should subsequently have entered judgment non оbstante veredicto.
In Robitzek v. Daum, supra, it is said, “What is probable cause and whether it exists under an admitted or clearly established state of facts is a question of law for the court: Walbridge v. Pruden,
In Wolf v. Stern, supra, this court said, “If it be made to appear there was probable cause for beginning tbe prosecution complained of, a complete legal defense is made out and its existence or nonexistence is а legal conclusion to be drawn from established facts. If tbe facts necessary to support such conclusion are admitted or established by uncontradicted evidence, it becomes tbe duty of tbe court to declare as a matter of law that such defense has or has not been made out......If tbe admitted facts in such a case amount to probable cause, a verdiсt for tbe defendant should be directed by tbe court.” It was appellant’s duty as treasurer to collect the accounts of tbe corporation. Plaintiff concedes that be received tbe check in question and that be neither delivered it to tbe сorporation nor explained what be did with it; it is not contended that tbe corporation authorized him to deliver it to tbe drawer; be endorsed and collected other checks made payable to tbe corporation; at first be denied that а demand bad been made on him for tbis check but be conceded that it bad, when confronted with bis letter acknowledging tbe demand. When be severed bis relations with tbe corporation, be bad tbe check. In such circumstances, after waiting from May 15th to May 26th when tbе information was made on which tbe warrant was obtained, a reasonable man might well conclude what tbe treasurer of this corporation concluded, that plaintiff bad converted tbe check to bis own use, and since that all appears in plаintiff’s own testimony, with nothing in defendant’s testimony to relieve him, be has himself shown probable cause and is not entitled to recover.
Tbe sеcond assignment of error is sustained and tbe record is remitted with instructions to enter judgment for defendant non obstante veredicto.