Merwin, J.
The grounds, in substance, upon which the defendants claimed to have probable cause, were that plaintiff had given them a larger order that fall than ever before; that his clerk had ordered of them a quantity of goods at an extravagant price, and on the same day had ordered of three other parties in Rochester goods to the amount, in the aggregate, of about $1,000; that a good many inquiries had been made of them as to the financial condition of plaintiff,—a thing that had never occurred before; that at the store of the plaintiff, just before the replevin suit was commenced, the plaintiff refused to give to Mr. Wile, one of the defendants, a statement of his financial condition; and that the amount of goods at the store was about $3,000, which Mr. Wile considered a small amount, and not enough to pay the plaintiff’s debts. The purchase from the defendants by the clerk of the plaintiff is denied by the clerk, and no goods were delivered. This circumstance must therefore be thrown out of view in determining the propriety of the nonsuit. It appeared from the defendants’ books that the plaintiff, in the fall of 1881, ordered nearly the same amount of goods, and in the fall of 1880 had ordered more; so that little or no force could be fairly given to the size of the order. Aside, then, from what occurred or was observed at the store, there were the other purchases at Rochester, and the inquiries made of the defendants. The .defendants knew that plaintiff had purchased from other people in Rochester before, and that it was customary in the trade to make inquiries of other merchants in regard to dealers. Mr. Wile, who acted for the defendants, testifies that he never inquired what the stock of plaintiff usually was, and had no information that he had secreted any goods, and made no inquiry on the subject. It is not suggested that he was informed by any one that plaintiff was insolvent. He testifies there was nothing that would indicate to his mind that plaintiff intended to fail in August when he bought the goods. It appears from defendants’ account that after the purchase in August plaintiff returned the goods purchased to the amount of $133, and he made payments to defendants to the amount of $833.27, including a payment of $37.27 on November 29th, the day before the replevin suit was commenced. These payments left nothing due the defendants on account prior to the August purchase. It seems to be very clear that the fact that plaintiff’s clerk bought of other parties goods to the amount of $1,000, and that other parties made inquiries of defendants as to plaintiff’s responsibility, furnished in themselves, and in view of the other conceded facts, no ground for defendants’ believing or suspecting that plaintiff intended to commit a fraud in his purchase in August. The main question, however, relates to what occurred or was observed at the store. Upon this there is a conflict in the evidence. The defendants give evidence tending to show that the goods at the store were of the value of only about $3,000, while evidence on the part of plaintiff is given tending to show that they were worth $9,000. Hone of the debt to defendants was then due. Wile, however, asked the plaintiff for a payment, saying that his firm needed the money. Plaintiff declined to make any payment, saying, in substance, that he wanted to use what money he then had to pay debts that were due, and that he would pay the defendants when their debt was due. Wile then asked for a statement, and, as he testifies, stated as reasons therefor that plaintiff had bought more goods than usual; that many inquiries had been made [206]*206about him; that his clerk had ordered goods at improper prices; and that he (Wile) wanted to be satisfied that plaintiff was good and responsible. The plaintiff, however, testifies that Wile gave no such reason for wanting a statement, and he is corroborated by one or more other witnesses. It is conceded that'plaintiff refused to give a statement. Wile concedes that the reason he gave for wanting a payment was not true. Plaintiff testifies that Wile “sneered at me, and said I wouldn’t be in existence two days in business in Skaneateles. That he was going to bust me in some kind ot shape.” A son of the plaintiff testifies to Wile saying, “We will bust him.” These declarar tians Wile, in his testimony, denied. Whether or not the refusal by plaintiff to give a statement was reasonable, under the circumstances, was, upon the evidence, a question of fact. If it was reasonable, and the goods then in the store were of the value testified on the part of plaintiff, and the purchase of the defendants by the clerk of plaintiff, as claimed by defendants, was never in fact made, all of which the jury might have found, it would not have been proper to hold as matter of law that the plaintiff failed to establish want of probable cause. I think it was, in this case, a jury question. Heyne v. Blair, 62 N. Y. 19. In Burhans v. Sanford, 19 Wend. 417, it is said that malice may be, and usually is, inferred in these actions from the want of probable cause. A like doctrine is asserted in many other cases. In the present case the question of malice was, I think, for the jury to pass upon. The defendants claimed the benefit of the advice of counsel, but it was a question of fact whether the advice was given in good faith, and upon a full and fair statement of all of defendants’ knowledge and information on the subject, and acted upon by them in good faith. In my opinion, the nonsuit was improperly granted, and the judgment should therefore be reversed.
Judgment reversed, and a new trial ordered, with costs to abide the event.
Martin, J., concurs. Hardin, P. J., dissents.
Statement by dissenting;
Hardin, P. J.
Appeal from a judgment entered the 13th of May, 1891, in Onondaga county clerk’s office upon and after a nonsuit granted at the circuit in that county, dismissing the complaint upon the merits. On the 30th day of November, 1882, the defendants commenced an action in replevin to recover “quantities of clothing to the amount of $882.50, ” which they had theretofore sold to the plaintiff, a retail dealer residing in the village of Skaneateles, from their store in the city of Bochester. Before the action was commenced the defendant Wile had an interview with the plaintiff, and in that interview sought to obtain a statement of the financial standing and affairs of the plaintiff. The plaintiff refused to make such a statement, or to make a disclosure of his affairs. Upon the trial of the replevin action at the March circuit in 1886 a verdict was rendered for the defendant in that case, the plaintiff here. This action was commenced May 19, 1887, and in the complaint it is alleged that all the “acts performed by the defendants and by their direction were without any probable cause whatsoever, and were done maliciously, for the purpose of injuring the plaintiff among merchants and in the community in which he he resided, and for the purpose of extorting from him, before the maturity of his obligations, the contract price of the goods purchased by the plaintiff from them. ” It appears the plaintiff commenced business at Skaneateles in March, 1879, and become a customer of the defendants, then doing a business in the city of Bochester, and made purchases prior to the replevin action amounting to some $6,500, on credit. In the fall of 1882 the plaintiff purchased of the defendants goods to the amount of about $1,015.50. Subsequently $133 in value thereof were returned,- so that there remained a balance of $882.50 at the time of the commencement of the replevin action on the 30th of November, 1882.
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Merwin, J.
The grounds, in substance, upon which the defendants claimed to have probable cause, were that plaintiff had given them a larger order that fall than ever before; that his clerk had ordered of them a quantity of goods at an extravagant price, and on the same day had ordered of three other parties in Rochester goods to the amount, in the aggregate, of about $1,000; that a good many inquiries had been made of them as to the financial condition of plaintiff,—a thing that had never occurred before; that at the store of the plaintiff, just before the replevin suit was commenced, the plaintiff refused to give to Mr. Wile, one of the defendants, a statement of his financial condition; and that the amount of goods at the store was about $3,000, which Mr. Wile considered a small amount, and not enough to pay the plaintiff’s debts. The purchase from the defendants by the clerk of the plaintiff is denied by the clerk, and no goods were delivered. This circumstance must therefore be thrown out of view in determining the propriety of the nonsuit. It appeared from the defendants’ books that the plaintiff, in the fall of 1881, ordered nearly the same amount of goods, and in the fall of 1880 had ordered more; so that little or no force could be fairly given to the size of the order. Aside, then, from what occurred or was observed at the store, there were the other purchases at Rochester, and the inquiries made of the defendants. The .defendants knew that plaintiff had purchased from other people in Rochester before, and that it was customary in the trade to make inquiries of other merchants in regard to dealers. Mr. Wile, who acted for the defendants, testifies that he never inquired what the stock of plaintiff usually was, and had no information that he had secreted any goods, and made no inquiry on the subject. It is not suggested that he was informed by any one that plaintiff was insolvent. He testifies there was nothing that would indicate to his mind that plaintiff intended to fail in August when he bought the goods. It appears from defendants’ account that after the purchase in August plaintiff returned the goods purchased to the amount of $133, and he made payments to defendants to the amount of $833.27, including a payment of $37.27 on November 29th, the day before the replevin suit was commenced. These payments left nothing due the defendants on account prior to the August purchase. It seems to be very clear that the fact that plaintiff’s clerk bought of other parties goods to the amount of $1,000, and that other parties made inquiries of defendants as to plaintiff’s responsibility, furnished in themselves, and in view of the other conceded facts, no ground for defendants’ believing or suspecting that plaintiff intended to commit a fraud in his purchase in August. The main question, however, relates to what occurred or was observed at the store. Upon this there is a conflict in the evidence. The defendants give evidence tending to show that the goods at the store were of the value of only about $3,000, while evidence on the part of plaintiff is given tending to show that they were worth $9,000. Hone of the debt to defendants was then due. Wile, however, asked the plaintiff for a payment, saying that his firm needed the money. Plaintiff declined to make any payment, saying, in substance, that he wanted to use what money he then had to pay debts that were due, and that he would pay the defendants when their debt was due. Wile then asked for a statement, and, as he testifies, stated as reasons therefor that plaintiff had bought more goods than usual; that many inquiries had been made [206]*206about him; that his clerk had ordered goods at improper prices; and that he (Wile) wanted to be satisfied that plaintiff was good and responsible. The plaintiff, however, testifies that Wile gave no such reason for wanting a statement, and he is corroborated by one or more other witnesses. It is conceded that'plaintiff refused to give a statement. Wile concedes that the reason he gave for wanting a payment was not true. Plaintiff testifies that Wile “sneered at me, and said I wouldn’t be in existence two days in business in Skaneateles. That he was going to bust me in some kind ot shape.” A son of the plaintiff testifies to Wile saying, “We will bust him.” These declarar tians Wile, in his testimony, denied. Whether or not the refusal by plaintiff to give a statement was reasonable, under the circumstances, was, upon the evidence, a question of fact. If it was reasonable, and the goods then in the store were of the value testified on the part of plaintiff, and the purchase of the defendants by the clerk of plaintiff, as claimed by defendants, was never in fact made, all of which the jury might have found, it would not have been proper to hold as matter of law that the plaintiff failed to establish want of probable cause. I think it was, in this case, a jury question. Heyne v. Blair, 62 N. Y. 19. In Burhans v. Sanford, 19 Wend. 417, it is said that malice may be, and usually is, inferred in these actions from the want of probable cause. A like doctrine is asserted in many other cases. In the present case the question of malice was, I think, for the jury to pass upon. The defendants claimed the benefit of the advice of counsel, but it was a question of fact whether the advice was given in good faith, and upon a full and fair statement of all of defendants’ knowledge and information on the subject, and acted upon by them in good faith. In my opinion, the nonsuit was improperly granted, and the judgment should therefore be reversed.
Judgment reversed, and a new trial ordered, with costs to abide the event.
Martin, J., concurs. Hardin, P. J., dissents.
Statement by dissenting;
Hardin, P. J.
Appeal from a judgment entered the 13th of May, 1891, in Onondaga county clerk’s office upon and after a nonsuit granted at the circuit in that county, dismissing the complaint upon the merits. On the 30th day of November, 1882, the defendants commenced an action in replevin to recover “quantities of clothing to the amount of $882.50, ” which they had theretofore sold to the plaintiff, a retail dealer residing in the village of Skaneateles, from their store in the city of Bochester. Before the action was commenced the defendant Wile had an interview with the plaintiff, and in that interview sought to obtain a statement of the financial standing and affairs of the plaintiff. The plaintiff refused to make such a statement, or to make a disclosure of his affairs. Upon the trial of the replevin action at the March circuit in 1886 a verdict was rendered for the defendant in that case, the plaintiff here. This action was commenced May 19, 1887, and in the complaint it is alleged that all the “acts performed by the defendants and by their direction were without any probable cause whatsoever, and were done maliciously, for the purpose of injuring the plaintiff among merchants and in the community in which he he resided, and for the purpose of extorting from him, before the maturity of his obligations, the contract price of the goods purchased by the plaintiff from them. ” It appears the plaintiff commenced business at Skaneateles in March, 1879, and become a customer of the defendants, then doing a business in the city of Bochester, and made purchases prior to the replevin action amounting to some $6,500, on credit. In the fall of 1882 the plaintiff purchased of the defendants goods to the amount of about $1,015.50. Subsequently $133 in value thereof were returned,- so that there remained a balance of $882.50 at the time of the commencement of the replevin action on the 30th of November, 1882. One of the defendants went to the city of Syr[207]*207acuse, and consulted their attorney, Mr. Stern, and in company with him, on the 30th of November, went to the village of Skaneateles, and sought the plaintiff, and, after having an interview with the plaintiff, and reviewing his stock of goods, and holding a conversation with the plaintiff, in which conversation the refusals were made to disclose a statement of his financial affairs and business standing, Mr. Wile communicated such additional facts as he had learned in the course of the interview to Mr. Stern, who thereupon advised the defendants “to commence an action to replevin the goods” which the defendants had sold to the plaintiff. According to the testimony of Mr. Stern, he heard a portion of the interview between the plaintiff and Wile, and thereafter advised the defendant Wile that an action of replevin could be maintained, and thereupon the action was commenced by placing the papers in the hands of the deputy sheriff, who immediately, with the aid of Mr. Stern and Mr. Wile, selected from the plaintiff’s stock of goods those which had been obtained from the defendants' firm. At the close of the evidence the defendants’ counsel moved for a nonsuit upon several grounds stated, and the court granted an order “directing a nonsuit in the action upon the merits.” To that ruling the plaintiff took an exception. The plaintiff then asked to go to the jury upon the whole case. The court refused, and an exception was taken, and thereupon judgment was entered in favor of the defendants, from which this appeal is taken.