20 Ga. App. 639 | Ga. Ct. App. | 1917
This was an action to recover damages for an alleged malicious prosecution instituted by Woodruff against Doss,
To the petition were attached various exhibits showing the proceedings before the United States commissioner and before the United States grand jury. Likewise a copy of the warrant sworn
The defendant, demurred generally to the petition, on the ground that no cause of action was set out, and also specially demurred to the allegations therein touching the appearance of Woodruff before the United States grand jury, and the further statement as to the news articles appearing in the public prints in reference to the charge of perjury and false swearing, made by Woodruff against
It was shown, without any conflict in the testimony, that Doss had been selling stock for the Interstate Chemical Company under the following contract: “This agreement, made and entered into this 15th day of January, 1913, by and between the Interstate Chemical Co., of Georgia, Eome, Ga., known hereafter as party of the first part, and F. C. Doss, of Eome, Ga., known hereafter as party of the second part, witnesseth: That said party, in consideration of mutual covenants and agreements herein contained, hereby contract and agree as follows, to wit: First: Said first party hereby appoints said second' party its agent and salesman for the purpose of soliciting and procuring applications for treasury stock in the Interstate Chemical Co., of Georgia, and securing such other business in connection therewith as first party may expressly require in the following territory: in Georgia. Second: First party agrees to pay second party a commission of twenty-five per cent, on all applications for treasury stock in the Interstate Chem
Under his construction of this contract Doss concluded that the Interstate Chemical Company was indebted to him in the sum of $3,630.87, hy reason of the fact that it had transferred or hypothecated in some way notes taken by him for stock in said corporation, under this contract. He testified: “They went ahead and transferred those notes, some of- which were not yet due, and that was the basis of my allegation that they owed me the amount stated there. , I figured up that this $3,630.87 is due me. It took all of my notes that I had taken, whether paid to the Chemical Company or not, to make that amount of commissions due me. There was a controversy between Mr. Christian and me as to 'how much the company owed me. He contended that the company did not owe me commissions on my notes unless the makers had paid them. They refused to pay me any more. They did not deny to me that they did not owe me this amount.- They refused to pay it to me. I demanded it. They have not paid it yet. Before I made this affidavit in the bankruptcy court I had gotten 75 per cent, of the 25 per cent. I was entitled to.” The Interstate Chemical Company contended that it would not be indebted to Doss on the notes in question until payment of the notes “in cash,” as provided by the terms of the written contract between them, by the makers of the notes or by some one for them. The corporation insisted, in ' various discussions of the matter between Doss and some of the officers of the company, that the hypothecation of the notes by the company did not amount to a payment thereof “in cash;” and this contention appears to be obviously correct, since/ in the absence of anything to the contrary, it must be assumed that the company in
It may be easily inferred that Doss, in making oath to the petition in bankruptcy, acted in good faith, honestly believing that because the- company had hypothecated notes obtained by him for stock, on which he was entitled to commissions, it owed- him such commissions immediately upon the transfer or discount of the notes and without awaiting the payment thereof in cash by the makers. Hence, it may readily be understood why the- grand jury of the United States court found no -bill on the charge preferred against him, as they doubtless concluded that there was no wrongful intent on his part in claiming under oath that the corporation owed him the sum he contended for, and that he did not knowingly make a false statement. On the other hand, it is clear that the statement made was in fact incorrect, and, in the broad sense of the word, was therefore a “false” statement, as alleged by Woodruff; for plainly, under all the testimony in the case, the corporation, at the time Doss made the oath to the petition in bankruptcy, was not indebted to him in the amount set forth in the petition. This being true, and considering the fact that Woodruff did not recklessly or carelessly act, but apparently made every effort to ascertain, before swearing out the warrant, whether or not the indebtedness claimed by Doss in fact existed, it is evident that there was no want of probable cause for the prosecution instituted by Woodruff.
Without extending the discussion or seeking further to amplify the ruling made, it is enough to say that the finding of the jury, that there was no probable cause for the prosecution instituted by Woodruff against Doss, was contrary to law, inasmuch as it is wholly unsupported by the evidence in the ease. The judge of the superior court therefore erred in overruling the motion for a new trial.
Judgment reversed.