Pierce v. Thompson

23 Mass. 193

Opinion

Per Curiam.

One objection on the part of Thompson, the defendant, is, that the judge erred in instructing the jury, that with respect to the suit brought by Thompson in his own name, they might consider whether any thing was equitably, though not legally due from Pierce to Thompson.

* The Court are clear that this instruction was correct. The sun was between persons formerly partners, for money had and received, and so equitable considerations were proper to be inquired into and allowed.

It was also contended, that as there was a submit sion and award from which it appeared, that including the rent, a ba_ance was due to Thompson, this should be considered conclusive evidence of probable cause. But we think it was not, for the submission was after the injury had been done by the attachments, and it was advised by friends of the parties as necessary to the proposed assignment of Pierce’s property.

It was further contended, that by the submission any claim for damages on account of the suits being malicious was waiv ed, but we do not consider that to be the necessary consequence. * If it could not be pleaded in bar, and we think it could not, of course it would not be conclusive evidence of a waiver. The jury had the benefit of it as evidence, to assist them in determining whether the suit was malicious, and whether there was a waiver of the claim for damages.

Another objection is, that the judge refused to appoint an auditor or to delay the cause in order that Thompson might have an opportunity to examine the accounts. Clark, the witness, had spent two months in investigating the books, during which period he often saw Thompson, who admitted several of the charges to be incorrect. There being no specification of supposed errors in the account stated by Clark, the judge thought that if he had authority, he was not bound, to appoint an auditor, and that it was not reasonable to interrupt the trial. The Court are of opinion that it was a matter entirely within the discretion of the judge, and that the verdict cannot be set aside on that ground. ¹

The counsel for Thompson contended, that where there are mutual dealings, bringing an action on one side only of the account will not be evidence of malice. But this will depend on the circumstances. If the party has no means of knowing the credit side, and his object is merely to have a settlement of the account, the action will not be malicious ; but if a partner, having opportunity to examine the books of the firm, brings such an action when the balance is in truth against him, It may be evidence of malice.¹ If Thompson’s object was only to effect an adjustment of the partnership concerns, he might have summoned Pierce, instead of attaching his whole stock in trade.

It was suggested, that all the suits should be considered as one action brought to produce a general settlement of all the concerns of the parties, so that if any thing was due from Pierce, there was no evidence of malice.* But this cannot be a correct principle, for then a man may at any time protect himself from the consequences of prosecuting a malicious action, by commencing at the same time an action founded on a valid demand.

In regard to the three last counts, for bringing suits for rent which were not groundless, but which are alleged to have been unauthorized, we think they were properly enough joined with the other count; but on the question whether they were sus tained by the evidence, there is a division of opinion. As Thompson was administrator, and had collected and paid over rents of other tenants, he might be considered as having had an implied authority in this instance, if he had used it for a fair and honest purpose ; but the jury must have considered that the suits were brought to vex and harass Pierce. The judges who think the verdict ought to be set aside, proceed on the ground that there was some cause of action, and that as the form and number of the suits were not directed by Thompson, but were left to his counsel, he is so far justified. The other judges consider, that there being no express authority from the widow and heirs to bring the suits, and he having recharged the rent in such a manner as to require more than one action, he might be answerable as intending to swell the costs. They think thére was evidence which might satisfy the jury of a malicious purpose.*

JVIotion to set aside the verdict overruled.

Habershon v. Troby, 3 Esp. R. 38, was cited by the defendant’s counsel. Reporter,

1 See Austin v. Debnam, 3 Barn. & Cressw. 139; 2 Stark. Ev. (5th Am. ed.) 499.

On this point Forseth v. Shaw, 10 Mass. R. 253, was cited for the defend ant, and Webster v. Lee, 5 Mass. R. 334, and Hodges v. Hodges, 9 Mass. R 320, for the plaintiff. Reporter.

1 See Revised Stat. c. 96, § 25.

Ravenga v. Mackintosh, 2 Barn. & Cressw. 693, was cited for the plaintiff Reporter.

Wetherden v. Embden, 3 Campb. 295, was cited for the defendant. Re porter.